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Proposed guidance clarifies how mental-health parity rules apply to benefit limits

By Julia Zuckerman and Lysle Laderman © ConduentMay 16, 2018

The Departments of Labor (DOL), Treasury, and Health and Human Services (HHS) recently issued guidance that clarifies how mental-health parity rules apply to benefit limits, such as pre-authorization and medical-management techniques, with specific examples of parity standards for experimental or investigative treatment limits, drug-formulary design and provider networks.

The guidance package, which the departments issued on April 23, was comprised of:

• Proposed FAQs (with comments due June 22, 2018).
  
• A revised disclosure template.
  
• A self-compliance tool.
  
• An enforcement fact sheet.
  
• DOL's 2018 report to Congress, Pathway to Full Parity.
  
• HHS's action plan.
  

Background

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) generally prohibits group health plans that provide mental health or substance-use disorder (MH/SUD) benefits from imposing less favorable conditions or more stringent limits on those benefits than they do on the same classification of medical and surgical benefits. This federal law requires parity in financial requirements (like deductibles or co-payments) and quantitative treatment limits (such as number of covered visits). It also requires parity in nonquantitative treatment limits, which are non-numerical limits on the scope or duration of benefits, such as a pre-authorization requirement or a medical-management technique.

MHPAEA does not require a plan to cover any specific MH/SUD conditions; rather, it requires that if it covers an MH/SUD condition, it covers it in parity with medical/surgical benefits. Also, MHPAEA does not apply to retiree-only plans or to excepted benefits.

Participants, beneficiaries, and the DOL may file claims for payment of mental health benefits under the law's civil enforcement provisions. Failure to comply with MHPAEA also may trigger an excise tax of $100 per day for each individual to whom a failure relates, under Internal Revenue Code Section 4980D.

As part of its 2017 MHPAEA enforcement efforts, the DOL reviewed 187 group health plans and identified 92 MHPAEA violations. Additionally, it answered over 127 public inquiries in 2017 relating to MHPAEA.

[SHRM members-only: Managing Employee Assistance Programs]

Proposed FAQs

The proposed FAQs identify certain plan features as nonquantitative treatment limits that violate (and, in a few cases, do not violate) parity requirements. For instance, a plan may not unconditionally exclude all experimental or investigative treatments for MH/SUD conditions while covering certain experimental or investigative treatments for medical and surgical conditions on a treatment-by-treatment basis.

It's unusual for subregulatory guidance like FAQs to be proposed for notice and comment, a process typically reserved for proposed regulations. The departments may have chosen this approach to retain the flexibility of subregulatory guidance while incorporating specific stakeholder feedback.

Revised Disclosure Template

The proposed disclosure template is designed to help participants and beneficiaries request information on any limitations that may affect their MH/SUD benefits, with the idea of enabling them to evaluate parity. The draft form, which participants and beneficiaries can use to request information from plans even though it has not yet been finalized, gives the plan 30 days to respond to these requests.

Self-Compliance Tool

The self-compliance tool, which the DOL intends to update every two years to reflect any additional MHPAEA guidance, is designed to assist plan sponsors in determining whether their plans comply with MHPAEA requirements. Plan sponsors can use the tool to review plan terms and policies, and to monitor those of vendors or carriers to confirm MHPAEA compliance.

Focus on Enforcement

The guidance suggests that, a decade after MHPAEA's enactment, enforcement is now a stronger priority than ever.

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Source: The Society For Human Resource Management (SHRM) 

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/regulators-ramp-up-mental-health-parity-enforcement.aspx

Look for news from the Labor Department by 2019

By Lisa Nagele-Piazza, SHRM-SCP, J.D. May 11, 2018

An update to the overtime rule is coming, though probably not as soon as most observers had anticipated.

The U.S. Department of Labor (DOL) intends to issue a Notice of Proposed Rulemaking to announce a new proposed salary threshold for the Fair Labor Standard Act's (FLSA's) white-collar exemption from overtime pay—but likely not until January 2019.

A halted 2016 rule would have doubled the salary threshold, but the new proposal is expected to be less sweeping. The new rule will likely be more accepted by the business community, said Eric Magnus, an attorney with Jackson Lewis in Atlanta.

The DOL said its decision will be informed by the comments the department received from its July 2017 request for information that solicited input from the public.

"The department will consider the information it received through the request for information, and it is my hope that there will be a recognition that asking employers to make changes to compensation levels is a complicated process," said Lee Schreter, an attorney with Littler in Atlanta. She hopes the DOL will give employers plenty of notice so that they have time to comply.

The Notice of Proposed Rulemaking was expected by October 2018, but the department recently said it will issue the proposal by January 2019. "Proposed regulatory actions are often delayed, so it would not be shocking for additional delay to occur," said Jennifer Betts, an attorney with Ogletree Deakins in Pittsburgh.

"More delays are always possible, but I am hoping that DOL will meet that date so we can see a final rule early in 2020," said Tammy McCutchen, an attorney with Littler in Washington, D.C.

So what will the new proposal look like? It's hard to predict. It would be difficult for employers to prepare extensively right now, given how uncertain things are, Betts said. However, it would be wise over the next few months for employers to identify any employees who are classified as exempt but are paid below the $40,000 mark. "These are the individuals who will most likely be impacted by any change," she said.

Because the new proposed salary threshold will be lower than the Obama administration's, there will be a narrower group of jobs affected, Magnus noted.

Controversial Rule

Under the FLSA, employees must be paid at least 1.5 times their regular rate for any hours worked beyond 40 in a week, unless they are properly classified as exempt. Among other requirements, the FLSA's administrative, executive and professional (white-collar) exemptions set a minimum salary that employees must earn.

President Barack Obama's administration finalized a rule in 2016 that would have raised the threshold to $47,476 from $23,660. However, a federal judge blocked the rule from taking effect and ultimately held that it was invalid. The decision left intact the $23,660 threshold, which has been in effect since 2004. An appeal of the permanent injunction is stayed but is still pending in the 5th U.S. Circuit Court of Appeals.

The $23,660 threshold "certainly needs to be updated," Secretary of Labor Alexander Acosta said at the American Bar Association's 11th Annual Labor and Employment Law Conference last year. But the $47,476 threshold "created a shock to the system, so we put out a request for information and are looking at the comments that were submitted," he said.

The Society for Human Resource Management supports an increase to the exempt salary threshold but has said that the Obama administration's rule raises it by too much, too fast. The 2016 rule "would have presented particular challenges for employers whose salaries tend to be lower, such as small employers, nonprofits, employers in certain industries and employers in certain geographic regions of the country that tend to have lower costs of living," according to SHRM.

The Society also opposes automatic increases to the salary threshold, which were a part of the 2016 rule. "Such increases ignore economic variations of industry and location and make it hard for HR to manage merit increases for employees near the salary level," SHRM said.

The DOL also announced that it will "clarify, update, and define regular rate requirements" under the FLSA. A Notice of Proposed Rulemaking is expected on this issue by September, but Magnus noted that it is unclear at this point what the proposal will entail.

Opportunity to Comment

Once the Notice of Proposed Rulemaking is issued, the public will be able to submit comments about the proposal. Employers can make their views are known by providing comments either directly or through their professional associations. "Telling the department about the dollars and cents impact is important," Schreter said.

Acosta has made a point to have "listening sessions" with many different stakeholders, including employees and employers. Hopefully the DOL will weigh everyone's input and arrive at something that is workable for employers and also recognizes a need to raise the salary threshold to some extent, Schreter added.

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Source: The Society For Human Resource Management (SHRM) 

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/federal-overtime-rule-changes-are-coming.aspx

By Jennifer Mora

May 8, 2018

California is rife with regulation of how employers may obtain and consider background check information for use in hiring and personnel decisions. The relatively new California ban-the-box law (effective Jan. 1, 2018) and the older Los Angeles and San Francisco ordinances and amendments to the California Labor Code set strict rules on when and how employers can consider criminal and credit histories in employment.

Before 2014, when San Francisco enacted a city-wide ban-the-box law, criminal history background checks were largely unregulated in California, except for a handful of Labor Code provisions that barred consideration of certain types of criminal records. And California employers were stripped of their ability to use credit checks for hiring and other personnel decisions in 2012, by amendments to the Labor Code that restricted the use of credit checks to very narrow circumstances. Los Angeles and the State of California have now joined San Francisco with their own ban-the-box laws, which markedly differ from San Francisco's.

As the number of class actions alleging Fair Credit Reporting Act (FCRA) violations continues to skyrocket, it is critical that California employers understand the basics of all laws affecting employment screening programs and determine what changes to policies, forms and practices will ensure compliance and reduce the risk of claims.

FCRA Basics

Generally speaking, before an employer may obtain a consumer report (aka a "background check report")—which may include criminal or credit history, from a third-party background check company ("consumer reporting agency" or "CRA")—the employer must make a clear and conspicuous written disclosure to the individual, in a document that consists "solely" of the disclosure, that a background check may be done. California's fair credit reporting statute also requires a separate, stand-alone disclosure, which cannot be combined with the FCRA disclosure. The applicant or employee must provide written consent for the employer to obtain a background check report.

Before an employer relies in whole or in part on a background check report to take an "adverse action" (e.g., rescinding a conditional job offer or discharging an employee), the employer must provide the individual a "pre-adverse action" notice, and include with it a copy of the report and the Consumer Financial Protection Bureau's Summary of Rights. This notice gives the individual an opportunity to discuss the report with the employer before the employer takes adverse action.

Once the employer is prepared to take the adverse action, it must then give the individual an "adverse action" notice, containing certain FCRA-mandated text.

California employers that rely on criminal and credit history information for employment purposes must also consider state and local laws that impose additional compliance obligations, regardless of whether the information is obtained from a CRA.

California's State and Local Ban-the-Box Laws Restrict Use of Criminal History

California's statewide ban-the-box law, as of Jan. 1, 2018, requires employers with five or more employees (subject to few exceptions) to follow certain procedures when requesting and using criminal history information for pre-hire purposes. Specifically, regardless of the source of the criminal history information, employers must:

• Wait until after a conditional offer of employment to inquire about criminal history, which means asking applicants directly whether they have been convicted of a crime, ordering a criminal history background check, or making any other inquiry about an applicant's criminal history.
  
• Conduct an individualized assessment of an applicant's conviction to determine whether it has a "direct and adverse relationship with the specific duties of the job that justify denying the applicant the position." Unlike the Los Angeles ban-the-box ordinance (discussed below), the California law does not require employers to provide the applicant with their assessment.
  
• Notify the applicant of any potential adverse action based on the conviction history. The notice must identify the conviction, include a copy of any conviction history report (regardless of the source), and state the deadline for the applicant to provide additional information, such as evidence of inaccuracy, rehabilitation or other mitigating circumstances.
  
• After waiting the requisite time period, notify the applicant of any final adverse action, of any existing procedure the applicant has to challenge the decision or request reconsideration, and of the applicant's right to file a complaint with the Department of Fair Employment and Housing.
  

In contrast to the FCRA pre-adverse and adverse action notices—required only if the adverse decision is based on information obtained from a background check report from a CRA—the California notices are required even if the employer doesn't order criminal background check reports from a CRA, but learns of the criminal history from a different source (such as an applicant self-disclosure).

Substantively, a wide range of criminal records are off-limits to California employers (unless the employer qualifies for very narrow exceptions identified in the Labor Code). Records that cannot be used are:

• Arrests that did not lead to a conviction.
  
• Nonfelony marijuana convictions that are older than two years.
  
• Juvenile records.
  
• Diversions and deferrals.
  

Although complying with California law can be challenging, employers that hire in the cities of Los Angeles and San Francisco must also look to the ban-the-box ordinances in these jurisdictions, which exceed the requirements found in the FCRA and the California ban-the-box law.

The Los Angeles Fair Chance Initiative for Hiring Ordinance

The Los Angeles ordinance, effective Jan. 22, 2017, applies to any employer located or doing business in the City of Los Angeles and employs 10 or more employees. An employee is any person who performs at least two hours of work on average each week in the City of Los Angeles and who is covered by California's minimum wage law. The ordinance also applies to job placement and referral agencies and is broad enough to cover other types of work, including temporary and seasonal workers and independent contractors.

The L.A. ordinance goes beyond California-imposed requirements by imposing the following onerous steps on employers when considering criminal history (regardless of the source):

• Perform a written assessment that "effectively links the specific aspects of the applicant's criminal history with risks inherent in the duties of the employment position sought by the applicant." The assessment form that contains the relevant factors can be found on the city's website.
  
• Provide the applicant a "Fair Chance Process"—giving the applicant an opportunity to provide information or documentation the employer should consider before making a final decision, including evidence that the criminal record is inaccurate, or evidence of rehabilitation or other mitigating factors. As part of this process, the employer must include with the pre-adverse action notice a copy of the written assessment and any other information supporting the employer's proposed adverse action.
  
• Wait at least five business days to take adverse action or fill the position. If the applicant provides additional information or documentation, the employer must consider the new information and perform a written reassessment, which is at the bottom of the form mentioned above. If the employer still decides to take adverse action against the applicant, the employer must notify the candidate and attach a copy of the reassessment with the adverse action notice.
  

Los Angeles also states that all solicitations and advertisements for Los Angeles opportunities must state that the employer will consider qualified candidates with criminal histories in a manner consistent with the law.

Moreover, employers must post, in a conspicuous workplace that applicants visit, a notice that informs candidates of the Los Angeles ordinance. Copies of the notice must be sent to each labor union or representative of workers that has a collective bargaining agreement or other agreement applicable to employees in Los Angeles. This notice can be found on the City's website.

San Francisco's Fair Chance Ordinance

San Francisco, as of Aug. 13, 2014, became California's first city to enact a ban-the-box law. Because the new California ban-the-box law provided greater protections to job applicants, the City and County of San Francisco Board of Supervisors (on April 3, 2018) amended the Fair Chance Ordinance (Article 49) to align (in some respects) with the California law. However, employers with five or more employees working in San Francisco that intend to inquire about and consider criminal history (regardless of the source) also must:

• Provide the applicant or employee with a copy of the Office of Labor Standards Enforcement's (OLSE) Fair Chance Act Notice before inquiring about criminal history or ordering a criminal history background check.
  
• Post the OLSE Notice "in a conspicuous place at every workplace, job site, or other location in San Francisco under the employer's control frequently visited by their employees or applicants," and "send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding, that is applicable to employees in San Francisco." The posted notice must be in English, Spanish, Chinese, and any language spoken by at least 5 percent of the employees at the workplace, job site, or other location at which it is posted. The notice currently is on the OLSE website.
  

Covered San Francisco employers are barred from considering the following types of criminal records (even though these records are not off-limits in other California cities), subject to narrow exceptions:

• Infractions.
  
• Convictions that are older than seven years (measured from the date of sentencing).
  
• Any conviction that arises out of conduct that has been decriminalized since the date of the conviction, measured from the date of sentencing (which would include convictions for certain marijuana and cannabis offenses).
  

California Workplace Solutions

Class actions against employers for failing to follow hyper-technical requirements for background checks have come to dominate the news. Employers in California and elsewhere will want to conduct (privileged) assessments to strengthen their compliance with the myriad laws that regulate use of an individual's criminal and credit history. Suggested next steps include:

• Assess coverage under the California, Los Angeles, and San Francisco ban-the-box laws, and California's law restricting use of credit reports.
  
• Review job advertisements and postings both for unlawful and mandatory language regarding criminal history.
  
• Review job application and related forms for unlawful inquiries regarding criminal history.
  
• Train employees who conduct job interviews and make or influence hiring and personnel decisions, regarding inquiries into, and uses of, credit and criminal history, including best practices for documentation and record retention.
  
• Review the hiring process to ensure compliance, including the timing of criminal history background checks, the distribution of mandatory notices, and the application of necessary waiting periods.

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/background-checks-employment-screening-california.aspx

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Leanna Garfield

  Apr. 25, 2018, 10:31 AM
 

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• Estée Lauder Companies is expanding its parental-leave policy in the US.
• The expanded benefits package now includes 20 weeks of paid leave, $10,000 toward adoption, and a back-to-work transition program — regardless of sex, gender, and sexual orientation. The company will also continue to offer $20,000 toward fertility treatments as well as in-home child care and elder care at a reduced rate.
• The new program is on par with many major tech companies, like IBM, Twitter, and Amazon.
• Estée Lauder's Executive Director of Global Benefits told Business Insider that the company realizes that no one family looks the same, which is why it wants to give employees multiple benefits options if they choose to have a child.

Starting May 1, Estée Lauder employees in the US who choose to have, foster, or adopt a child will get 20 weeks of paid leave— regardless of sex, gender, and sexual orientation. And if they conceive of that child themselves, they will receive an additional six to eight weeks of paid time off.

The new offerings are part of the company's expanded family-benefits program. Employees at Estée Lauder can now also seek up to $10,000 for adoption fees.

Both hourly and salaried employees are eligible, as long as they work at least 30 hours per week and have been with the company at least three months. Before the change, Estée Lauder offered 12 weeks of paid parental leave. The company will continue to offer up to $20,000 per year toward fertility treatments, as well as child or elder care at a reduced rate to eligible workers.

In addition, the company is launching a back-to-work transition program for new parents. As part of this six-week program, Estée will give parents flexibility on where and when they work. For example, a new mom could work from home a few days per week if she chooses, or a dad could adjust his schedule in that he comes in earlier and leaves earlier than the usual 9 to 5. And those who qualify for Estée's new childcare/eldercare program expend a co-pay of $8 an hour.

The new parental-leave program is a generous policy for a company as big as Estée Lauder. In the US, many parental-leave programs prioritize birth mothers— and therefore offer limited benefitsto fathers, adoptive parents, foster parents, or LGBT parents. Hourly workers are also less likely to receive an extensive amount of paid leave, even though they are more likely to not be able to affordnewborn child care.

It's also fairly unusual to offer such a large reimbursement toward adoption, which costs between $34,093 and $39,966 on average for American parents. In recent years, a growing number of large American companies have started including adoption reimbursement as part of their benefits packages. American Express, for example, will give up to $35,000 per adoption to eligible, salaried and hourly employees.

One reason for Estée's expanded policy was to stay competitive when prospective employees are considering benefits packages from other companies, according to Latricia Parker, Estée Lauder's Executive Director of Global Benefits. Approximately 84% of Estée's American workforce are also women, who tend to take more parental leave than men.

Estée's expanded benefits package seeks to acknowledge that families are diverse as well. Its employees might want to adopt regardless of whether they're able to physically conceive. Fathers may be the lead parent and need some extra time off.

"We're seeing a general shift away from focusing on more traditional benefits, like medical and dental," Parker told BI. "Now, it's all about the individual, rather than employers dictating what's right for them. Employees want to understand the options available to them ... We [Estée Lauder] don't want to dictate what their families should look like."

The cosmetics giant is following several other major corporations that have recently made similar changes to their family-leave policies in the US. As of February 2018, the nation's 20 largest employers now offer paid parental leave to at least some of their workers. Out of these, IBM offers the most extensive family-leave program for hourly and salaried employees: 20 weeks of paid leave for birth mothers and 12 weeks for other types of parents. As an outlier, Netflix announced in 2015that it gives parents up to a year of paid time off.

All three companies offer many more weeks of paid parental leave than the national maternity-leave average: 2.8 weeks for women on a typical salary. According to a 2017 report, more than 114 million Americans do not have any form of paid parental leave.

The Family Medical Leave Act currently gives women 12 weeks of job-protected unpaid leave, but many workers don't qualify. In addition, only 6% of people working low-wage jobs have access to any paid family leave.

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Source: Business Insider

http://www.businessinsider.com/estee-lauder-parental-maternity-leave-policy-2018-4

New regulations would apply to more advisors than the DOL’s stalled rule

By Stephen Miller, CEBS Apr 26, 2018

The Securities and Exchange Commission (SEC) on April 18 issued its own proposals to enhance the quality and transparency of investors' relationships with advisors and brokers.

The SEC's move comes at a time when the Department of Labor (DOL) struggles over implementing the Obama administration's fiduciary rule requiring retirement plan advisors to offer only advice that's in the best interest of plan participants regardless of fees or commissions—and holding plan sponsors liable for seeing that they do.

This move by the SEC comes after a March 2018 ruling by the 5th Circuit that squashed enforcement of the DOL's 2016 fiduciary rule, putting the guidelines in limbo, in what John Ryan, a partner in law firm Seward & Kissel's employee benefits group in New York City, calls the "Kafkaesque saga of the fiduciary advice rule."

The DOL faces an April 30 deadline to appeal the 5th Circuit decision, Ryan noted. If the DOL chooses not to appeal, the court's decision will take effect on May 7, vacating the DOL's rule. That could pave the way for the SEC to be the key regulator of investment advice.

Among the documents the SEC issued last week were:

• A proposed best-interest regulation for brokers, requiring that they act in the best interest of customers when recommending any securities transaction or investment strategy.
  

• A proposed investment advisor interpretation that clarifies the fiduciary duty an investment advisor owes clients, including advice about an investment strategy and recommendations to roll over assets from an employer-sponsored retirement plan to an individual retirement account.
  

• A proposed rule on standardized descriptions of services that requires advisors and brokers to provide a new short-form document highlighting services offered, the fees a customer might pay and conflicts of interest that may exist.
  

• An overview of the proposed standards of conduct for investment professionals.
  

The public comment period will remain open for 90 days following the documents' forthcoming publication in the Federal Register.

SEC's Broader Reach

The DOL's fiduciary rule, proposed in 2015 and finalized in 2016, applied to some—but not all—financial advisors and brokers. The DOL can regulate services provided to retirement accounts but (unlike the SEC) lacks jurisdiction over taxable brokerage accounts.

Excluding some types of annuities, the SEC's rule would apply uniformly across all types of investment accounts, "which is arguably a significant improvement from the DOL's fiduciary rule that was limited to 'just' retirement accounts," blogged financial writer Michael Kitces.

Some states, including Nevada and Connecticut, have also adopted their own fiduciary rules, which can be more expansive than the DOL's rulemaking, Kitces pointed out.

No Right to Sue

While the SEC proposal calls for a best-interest standard for investment professionals, it does not provide for a private right of action giving investors the right to sue, which was a controversial component of the DOL's fiduciary rule.

"The law should unambiguously require investment professionals to act in the best interests of their customers, who entrust them with their hard-earned money," said Dennis Kelleher, president and CEO of Better Markets, a nonprofit that supports financial reform. The SEC proposal "appears to fall well short of that standard, relying too heavily on disclosure. While some provisions may offer modest benefits to investors, the SEC appears to have missed a historic opportunity to finally establish a strong, clear, enforceable best-interest standard for all advisors."

However, regardless of the status of its fiduciary rule, "the DOL has the authority to use its resources to investigate and discipline any plan fiduciary who breaches their fiduciary duties, and can initiate action based on complaints from plan participants who have been harmed," said Barry Kozak, a Chicago-based retirement planning advisor with October Three Consulting. "Similarly, the SEC has the authority to investigate and discipline any broker-dealer or investment advisor who violates their rules of conduct, and can initiate action based on complaints from the general public," he added.

Future DOL Guidance

If it doesn't appeal the 5th Circuit case and its fiduciary rule is vacated, "the DOL still could provide additional guidance that complements the SEC proposal," Ryan said. "Such guidance could require clear disclosure of the level of advice being offered"—for instance, whether it meets the Employee Retirement Income Security Act's fiduciary standard and is for participants' exclusive benefit—"that will provide plan fiduciaries with a clear understanding of the relationship they are entering into, the obligations of the financial institution, as well as the fees they are paying for those services," he explained.

Similarly, "It is likely—at least in my view—that the DOL will follow suit and issue a proposed regulation re-defining fiduciary advice" that is less expansive than the DOL's fiduciary rule,blogged attorney Fred Reish, a partner in the Los Angeles office of Drinker Biddle & Reath. "The DOL will also need to issue prohibited transaction exemptions," he noted, adding, "I suspect that the DOL exemptions will, for the most part, follow the SEC's disclosure requirements, but perhaps adding additional protections for retirement investors."

No Going Back

While the future of the DOL's fiduciary rule remains uncertain, and the SEC's regulations governing the conduct of broker-dealers and investment advisors have been published only in proposed form, pending public comments, "business models are most likely being realigned right now" at financial services firms, Kozak said. Financial firms "are trying to project short-term and long-term compliance solutions with these possibly competing rules in a manner that is least disruptive to their bottom lines, which generally could mean the elimination of certain undisclosed compensation bonuses and rewards for the purchase of certain investment options over others."

He added, "If the industry becomes more forthcoming with how compensation is actually determined, then, with informed consumers, there will be less chance of a violation of trust."

Although the Society for Human Resource Management (SHRM) has not taken a position on the SEC's efforts, "SHRM believes that a bedrock of sound fiscal and savings policy is ensuring that every U.S. employee has the opportunity to save and plan for retirement and protect his or her family's health," and that "public-policy efforts at both the federal and state levels should focus on expansion of and access to benefits, including retirement accounts," according to SHRM's 2018 Guide to Public Policy Issues.

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Source: Society for Human Resource Management (SHRM) 

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/sec-investment-advice-proposal.aspx

Many employers can design plans to reduce addiction risks

By Stephen Miller, CEBS Apr 24, 2018

Surgeon General Jerome Adams called on employers to "step up" to combat the opioid epidemic.

"As employers, you already understand that the health of your employees has an impact on your bottom line," said Adams, an anesthesiologist who was confirmed by the Senate as the 20th U.S. surgeon general last August. "My challenge to you is to think about how you can impact health beyond the walls of your office, beyond the factory."

Adams spoke April 19 in Washington, D.C., at Business Health Agenda 2018, a conference sponsored by the National Business Group on Health (NBGH), an association of large employers.

Addiction is a public health crisis, Adams noted, with an estimated 2.1 million people in the U.S. struggling with an opioid-use condition. "There's a person dying of an opioid overdose every 12 and a half minutes," he said. "Four out of five people who use heroin started with a prescription opioid."

While these drugs can be helpful for a short time, they pose serious addiction risks. "For most people, frankly, the risks outweigh the benefits," Adams said.

More than a third of people with an opioid prescription don't realize they're taking an opioid to treat pain, he pointed out. Common opioids are OxyContin (a brand of oxycodone), Vicodin (which contains hydrocodone), morphine and methadone.

"There are levers that you, as employers, have through your plan administration to help people understand what an opioid is. You have control over a lot of prescribing, and you can say [to health providers], 'If you're going to prescribe opioids to my employees, you better tell them that they're taking an opioid and let them know what the dangers are.' "

Turn Off the Spigot

Employers, especially large self-insured organizations, can ensure that health providers are following Centers for Disease Control and Prevention (CDC) guidelines, Adams said. "Use your levers on the health care deliver side."

Dental prescriptions for opioids is the first step for many toward addiction, he pointed out. "If you tell your employees and their families that you're not going to pay for more than 10 pills if they go to the dentist, that will have a quicker impact than anything I can do as surgeon general to educate the prescribers in the community."

Or, implement a three-day limit on opioid prescriptions for initial pain treatment, given that the CDC found that the probability of addiction increases on day four. A three-day limit on opioids has just become the law in Florida.

Promote Best Practices

"It's important that you know what successful treatment programs look like," Adams said. For instance, best-practice providers are offering:

• Personalized diagnosis, assessment and treatment planning.
  

• Access to Food and Drug Administration-approved non-opioid medications.
  

• Behavioral health interventions delivered by trained professionals.
  

• Long-term disease management coaching.
  

• Coordinated care for co-existing diseases and disorders.
  

• Support services such as mutual-aid groups that can provide emotional and practical support for recovery.
  

"I've heard feedback from employers that don't want to pay for fly-by-night programs that are not evidence-based. We're working to help you understand what is evidence-based, and I'm asking that you work with me to make sure once you know the criteria that you pay for [effective treatments] for your employees," Adams said.

Also, identify pain-management centers of excellence and "reward people for doing the right thing by incentivizing providers to accept those best practices for alternatives to opioids, such as physical therapy, music therapy and acupuncture, and other modalities that many plans aren't paying for and that aren't packaged in a way that makes them easily accessible," he said.

Reach Out

"Each and every one of you who is an HR director should know someone at your county or state health department, because they're the ones who know what's going on in your communities," Adams said. "They know the risks as well as the programs that can help reverse those trends beyond the levers that you have on the workplace wellness site."

In addition, large employers can help small and medium-size businesses in their communities by sharing practices around what's working and what's not. "Share your data so they understand they can have an impact," Adams said. "Bring them to the table with local social-services providers."

April 28 is National Prescription Drug Take-Back Day, "and we want you to be a part of it and to help promote it" through employee communications, Adams said. "We want to get these medications off of shelves in homes; we want to get rid of the killer that's in your medicine cabinet."

Stepping Up

NBGH's Large Employers' 2018 Health Care Strategy and Plan Design Survey found that the vast majority of big employers (80 percent) are concerned about abuse of prescription opioids and that many are taking steps to address the opioid epidemic. The survey was conducted last year from May 22 to June 2.

(Click on graphic to view in a separate window.)

"The opioid crisis is a growing concern among large employers, and with good reason," said Brian Marcotte, NBGH president and CEO. "The misuse and abuse of opioids could negatively impact employee productivity, workplace costs, the availability of labor, absenteeism and disability costs, workers' compensation claims, as well as overall medical expenses."

"Companies incur significant financial and legal risks, such as an increased use of ER services, hospitalizations, related medical costs, and more workers' comp claims," due to opioid use, Linda Keller, employee benefits practice leader for Hub International, a Chicago-based benefits and insurance broker, wrote last October on The SHRM Blog. "The cost per claim as a result of opioid abuse continues to grow, as well as the number of painkillers per claim."

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Source: Society for Human Resource Management (SHRM) 

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/surgeon-general-wants-employers-to-combat-opioid-epidemic.aspx

U.S. workers spend more than 5 hours per weekday on email. Here's how to fix that.

Hayden Field - Entrepreneur Staff

Associate Editor 

April 16, 2018 

Castle in the sky. Pipe dream. Fool’s paradise. They all mean an unattainable fantasy, and for many, that’s the idea of finally reaching “inbox zero.”

Each weekday in the U.S., white-collar workers spend about 5.4 hours checking email, according to an Adobe Campaign survey. More than any other age group, people ages 18 to 34 tend to check email during workouts, while eating with friends and even while driving.

So why is email such a “time suck”? For one, email sets up the day’s agenda by time of arrival, and that’s not an accurate or efficient way to sort tasks, says Dan Ariely, professor of psychology and behavioral economics at Duke University. Realtime notifications aren’t efficient, either, since they often serve as distractions from the work at hand. Since people often check email on the go, they tend to read each message multiple times unnecessarily before they have time to respond later.

The good news: “Inbox zero” is possible -- and so is saving hours of time each day for increased productivity. Here’s your go-to guide for revamping your email strategy.

1. Think of email like snail mail.

Imagine receiving one piece of snail mail every few minutes and opening each letter immediately. Inefficient, right? The way regular mail works, people get one batch a day, meaning they check it once and make decisions right away about what to throw away and what to flag.

“We don’t do email that way,” says Peter Bregman, author of 18 Minutes: Find Your Focus, Master Distraction, and Get the Right Things Done. “We do it as if the mailman’s just sitting there and taps you on the shoulder every minute and rings a bell in your ear.”

Even worse, imagine opening a piece of mail, reading it, closing it back up, returning it to the postman and saying, “Give it back to me in a little bit,” Bregman says. That’s essentially what we’re doing when we read an email on the go without time to respond.

Related: A Quick Guide to Email Etiquette (Infographic)

2. Stick to scheduled email sessions -- and turn off notifications.

The first step in changing your email strategy is to stop checking it in realtime. Commit to opening your inbox no more than three times a day -- at the beginning, middle and end of the day. When you do check your email, do it mindfully -- sit down, focus and give it your full attention.

First, go through and delete whatever you can, says Joseph R. Ferrari, professor of psychology at DePaul University. Answer whatever you can immediately, file messages you need to keep in corresponding inbox folders, then close your inbox until the next planned time.

To make this strategy work, it’s important to make sure your inbox is always closed except for the specific times you planned. That means no notifications, either -- turn off new message alerts and icon badges on your phone. That way, you won’t be tempted to check your email between scheduled sessions.

3. Take advantage of inbox filters.

Ariely sorts his email four different ways -- “Now,” “Daily,” “Weekly” and “One Day” -- and he sets inbox rules for which senders go into each section. For example, messages from The New York Times can go into a daily folder, while he can check Amazon promotions and shipping notifications weekly -- but Ariely only checks his “One Day” section on flights or when he has extra downtime.

Set up your own filters. In Gmail, simply search for something in your inbox -- for example, an investor’s name. Next, click “More,” “Create filter with this search,” then choose what you’d like the filter to do (like send the investor’s email to your “Now” folder), finally, click “Create filter.” This strategy helps save time and energy since you can direct your attention according to message urgency.

Related: 6 Keys to Email Marketing Success

4. “Always be closing.”

“They say about salespeople, ‘Always be closing,’” Bregman says. “You should think of your email in the same way. What do I do to respond to an email to not create seven more emails for 25 more people?”

That might be picking up the phone and calling someone instead of going back and forth multiple times to schedule a meeting. It might mean taking unnecessary recipients off of a thread, or it might be definitively ending the conversation once goals have been met. Be intentional with every message you send, and always have the same goal in mind -- preventing unnecessary back-and-forth.

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Source: entrepreneur.com

https://www.entrepreneur.com/article/312063

By Jack Zenger and Joseph Folkman

APRIL 17, 2018

When a company needs a supervisor for a team, senior leaders often anoint the team’s most productive performer. Some of these stars succeed in their new role as manager; many others do not. And when they fail, they tend to leave the organization, costing the company double: Not only has the team lost its new manager, but it’s also lost the best individual contributor. And the failure can be personally costly for the new manager, causing them to doubt their skills, smarts, and future career path. Everyone loses.

Why, then, do some fail while others succeed?

In another article, we explained the seven behaviors of the most productive people, based on an analysis of 7,000 workers. The behaviors were: setting stretch goals, showing consistency, having knowledge and technical expertise, driving for results, anticipating and solving problems, taking initiative, and being collaborative.

These competencies all leverage individual skills and individual effectiveness. They are valued skills and make people more productive, but all except for the last one (collaboration) focus on the individual rather than the team. When we went back to our data, the skills that our analysis identified as making a great manager are much more other-focused: 

• Being open to feedback and personal change. A key skill for new managers is the willingness to ask for and act on feedback from others. They seek to be more self-aware. They are on a continuing quest to get better.
• Supporting others’ development. All leaders, whether they are supervisors or managers, need to be concerned about developing others. While individual contributors can focus on their own development, great managers take pride in helping others learn. They know how to give actionable feedback. 
• Being open to innovation. The person who focuses on productivity often has found a workable process, and they strive to make that process work as efficiently as possible. Leaders, on the other hand, recognize that innovation often isn’t linear or particularly efficient. An inspiring leader is open to creativity and understands that it can take time.
• Communicating well. One of the most critical skills for managers is their ability to present their ideas to others in an interesting and engaging manner. A certain amount of communication is required for the highly productive individual contributor, but communication is not the central core of their effectiveness.
• Having good interpersonal skills. This is a requirement for effective managers. Emotional intelligence has become seen as perhaps the essential leadership skill. Although highly productive individuals are not loners, hermits, or curmudgeons, being highly productive often does not require a person to have excellent interpersonal skills.
• Supporting organizational changes. While highly productive individuals can be relatively self-centered, leaders and managers must place the organization above themselves.

When we further analyzed our data, we found that many of the most productive individuals were significantly less effective on these skills. Let’s be clear, these were not negatively correlated with productivity; they just didn’t go hand in hand with being highly productive. Some highly productive individuals possessed these traits and behaviors, and having these traits didn’t diminish their productivity.

But this helps explain why some highly productive people go on to be very successful managers and why others don’t. While the best leaders are highly productive people, the most highly productive people don’t always gravitate toward leading others.

Nearly one-quarter (23%) of the leaders who are in the top quartile on productivity are below the top quartile on these six leadership-oriented skills. So, the odds are that one out of four times a person is promoted to a leadership position because of their outstanding productivity, they will end up being a less effective leader than expected. If the highly productive person possesses technical expertise that is specific and acquired over a long period of time, it is tempting to hope the individual will quickly acquire the needed leadership skills shortly after being put into a new role. Sadly, it only happens part of the time.

Managers need to be aware that the skills that make individual contributors effective and highly productive are not the only skills they will need to be effective managers. We are convinced that the best time for individual contributors to be learning these managerial skills is when they are still an individual contributor.

Some organizations are much more adept at identifying those individuals who will be successful managers. These organizations tend to get a jump on developing managerial skill in these high-potential individuals, training them before they’re promoted.

Why start early? After all, most people who end up being ineffective supervisors are not terrible at the skills listed above, and those who recommend them for promotion believe that those skills can be further developed once they’re in a managerial role. The problem is that developing these skills takes time and effort, and organizations typically want to see immediate positive results. New managers tend to be overwhelmed with their new responsibilities and often rely on the skills that made them successful individual contributors, rather than the skills needed to manage others. The time to help high-potential individuals develop these skills is before you promote them, not after.

This should come as a wake-up call to the many organizations that put off any leadership development efforts until someone is promoted to a supervisory position. There’s no reason to wait; after all, when individual contributors improve these leadership skills, they will become more effective individual contributors. The time and money spent investing in individual contributors’ leadership development will help both those who are promoted and those who are not.

The bottom line: Start your leadership development efforts sooner. Then when you promote your best individual contributors, you can be more certain that they’ll become your best managers.

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Source: 

 Harvard Business Review (HBR)

https://hbr.org/2018/04/why-the-most-productive-people-dont-always-make-the-best-managers

By Audrey L. Stanley ... Apr 17, 2018

A building manager who attended management meetings and supervised and directed others could still be entitled to overtime pay under the Fair Labor Standards Act (FLSA), the 2nd U.S. Circuit Court of Appeals held.

Total Management Solutions (TMS) employed the plaintiff as a building manager at St. John's University in New York and paid him an annual salary of $80,000. His duties included ensuring the cleanliness of buildings, supervising six to 15 cleaners, directing cleaners in their work, reallocating workers when short-staffed, setting up rooms for meetings or events, and attending a daily management meeting led by his supervisor. His boss distributed work orders to the plaintiff, who then selected cleaners to carry out the orders.

The plaintiff also handled off-campus work and event setups, and had a separate agreement in which he was paid for overseeing athletic facilities during basketball games. Although a collective bargaining agreement prohibited him from performing cleaning duties, the plaintiff testified that he performed nonsupervisory cleaning duties 90 percent of the time.

In 2015, the plaintiff sued TMS, claiming it violated the FLSA by failing to pay him overtime. The district court dismissed his FLSA claim, concluding the plaintiff qualified for the executive exemption and was not entitled to overtime.

The district court reasoned that the plaintiff's primary duty was managerial, and he had authority to recommend the hiring, firing or change in status of other employees. The district court disregarded the plaintiff's testimony that the majority of his work involved nonsupervisory duties, finding it untrue.

The appeals court disagreed. Because the plaintiff had testified that 90 percent of his work was nonsupervisory physical cleaning, TMS could not conclusively establish that his primary duties involved management activities. According to the appellate court, the district court erroneously disregarded the plaintiff's testimony, as the district court cannot assess the credibility of evidence on summary judgment but must determine only whether a factual dispute exists.

Similarly, because the plaintiff testified that he never recommended disciplinary action; did not have authority to hire or fire employees; and did not make recommendations to hire, promote and fire employees, there was a dispute as to whether he indeed had such authority. Additionally, TMS identified only one instance when the plaintiff recommended disciplinary action, and the plaintiff himself did not administer discipline on that occasion. Accordingly, there was a factual dispute as to whether he met the test for the executive exemption from the overtime provisions of the FLSA, and therefore dismissal was inappropriate.

The appellate court's decision to vacate the dismissal does not establish that the plaintiff proved his claim but only that he presented enough evidence to dispute that he was employed in an executive capacity exempt from the FLSA's overtime wage provisions.

Paganas v. Total Maintenance Solution LLC, 2d Cir., No. 17-0040 (March 12, 2018).

Professional Pointer: This case serves as a reminder that employers should engage in a periodic analysis of exempt employees' actual job duties. The fact that an employee is called a manager and has authority to supervise according to a job description does not mean that the employee is exempt from overtime requirements.

Audrey L. Stanley is an attorney with Marr, Jones, & Wang LLP, the Worklaw® Network member firm in Honolulu.

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/court-report-supervisor-may-not-be-exempt.aspx

reat remote work requests from workers who are recuperating the same as you would any other employee.

By Angela Simpson Apr 24, 2018

No. In fact, you should treat such an individual in the same manner you would any other employee making a request to work remotely. So, if you allow telecommuting in certain circumstances, consider whether it makes sense as an option for an employee returning to work after an illness or surgery. 

Start by reviewing any medical documentation to confirm that the employee has been released to return to work and determine if he or she has any physical limitations that would impact a work-from-home arrangement. Consider whether to require a doctor to certify that the employee is able to work in accordance with your normal fitness-for-duty policies.

Think, too, about how your decision will affect time off under the Family and Medical Leave Act (FMLA). Any time that employees spend doing their jobs cannot be counted against their entitlement. So, if a worker is on FMLA leave for surgery, allowing remote work can extend the amount of FMLA time available to him or her beyond 12 workweeks. For example, if a person normally works 40 hours a week and now performs 10 hours of work while on leave, only 30 hours can be counted toward the employee’s FMLA entitlement. 

Check your short-term disability plan to determine if partial benefits are available under that insurance. Finally, take into account the Fair Labor Standards Act (FLSA) and any other pay implications of permitting an employee to work a partial day while recuperating.

The pay process for nonexempt workers is simple. You are required to compensate such employees only for hours worked. That said, be sure to record all nonexempt time worked and provide appropriate payment to comply with the FLSA. 

Exempt employees, on the other hand, must be paid a minimum guaranteed salary that is not based on quantity or quality of work. Moreover, pay deductions for absences must meet the requirements of the salary basis regulation; otherwise, the employee’s exempt status could be in jeopardy. Visit the Department of Labor’s website for further guidance.

In short, there’s no one-size-fits-all answer here. In some cases, it will make sense to allow telework, while in others it won’t be conducive to the employee’s recovery or the employer’s needs. Evaluate the specifics of each situation to figure out the best approach.

Angela Simpson is an HR knowledge advisor for the Society for Human Resource Management. 

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/hr-today/news/hr-magazine/0518/pages/are-we-required-to-let-an-employee-on-short-term-disability-work-from-home.aspx